Moving With
Children: Colorado Custody-Visitation Relocation Law

When A Parent Wishes to
Move

In this, our “Spotlight” feature, we discuss in detail a single issue
of Colorado divorce law or the family mediation process. We periodically change our Spotlight's focus, so return soon to
review other featured Colorado legal, procedural or parenting
topics!

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topics for future Spotlights.

Divorced or unmarried Colorado parents sometimes find themselves
considering moving out-of-state, or relocating to a
community substantially more distant (from the other parent)
than contemplated by their original parenting plan.

The
question often arises: is such a move permissible in
the face of the objection of the other parent? Legally, this
is often referred to as a child custody or visitation “relocation or “removal” issue and dispute.
Colloquially, these are often called “move-away”
cases.

Recent
Colorado divorce and custody statutes (laws passed
by the Colorado legislature) and Colorado case law
(decisions by judges hearing appeals of Colorado
custody-visitation trials)
appear to change the legal landscape. Parents
considering moving or relocating with their children, or
considering their spouse or
co-parent's request to move or relocate, will find a
new approach and test applied to their case if they are unable to
reach an agreement and proceed to court.

In September, 2001, the Colorado statutes established a
new procedure and standard for review of cases in which the parent with whom the child resides a
majority of the time seeks to relocate or move to a
residence substantially changing the geographic ties between
the child and the other parent.

The New Colorado
Custody and Visitation Relocation Procedure

The new Colorado
child custody and visitation relocation law requires a parent seeking to
relocate with the parties' child, to provide
written notice to the other parent, of

the requesting parent's
intent to relocate;

the location of the proposed new home;

the reasons for the requested relocation and
move; and

a proposed and revised new parenting
time schedule and plan.

The New Colorado
Custody and Visitation
Relocation Standard

The new Colorado child custody and
visitation relocation law further requires the Court
considering such a request, to determine whether relocation “is in the best interests of the
child,” considering all relevant
circumstances, including ordinary
custody-visitation-parenting time factors, and additionally
nine special concerns:

the reasons why the parent wishes to relocate with
the child;

the reasons why the other parent objects to the proposed
move;

the history and quality of each parent's relationship
with the child since earlier court orders;

the educational opportunities for the child in the
present home community and/or in the proposed new community;

whether there is extended family in the present home
community and/or in the proposed new community;

the benefits of the child remaining with the parent with
whom the child presently resides a majority of the time;

the anticipated impact of the move on the child;

whether meaningful parenting time-visitation can be
afforded the other parent if the move or relocation is
granted; and

any other factors relevant in considering the best
interests of the child.

The law contemplates that moving
within Colorado may also materially
disrupt present parenting plans and
timesharing arrangements. The new
Colorado parenting law applies to any
intended relocation that “substantially
changes geographic ties.”

The Colorado Court of
Appeals (Colorado's intermediate
appellate court) has invoked this new
Colorado family law statute and
framework in two recent Colorado child
custody - visitation relocation cases,
emphasizing that the “best interests of
the child” standard now controls
Colorado courts' rulings in
relocation/move-away cases..

In a May, 2004 case, the Colorado Court of Appeals agreed
with a Jefferson County trial court's ruling in support of a
parent's (in this case, the Father's) objection to a
proposed move. In the particular circumstances of this
family,
the Colorado divorce court disallowed a mother's request to relocate with
their son to
Arizona.

In an April, 2005 case, the Colorado
Court of Appeals approved an Adams County,
Colorado divorce judge's decision that a
mother's proposed move to Missouri with the
parties' children was also contrary to the
children's best interests. To prevent the
move-away, the Adams County trial court
changed the parties' decision-making
authority (formerly called “custody”) to a
shared approach and designated father as the
primary residential parent.

What factors influenced this particular
decision? The Colorado trial judge found
that the children had thrived in the same
school since preschool, were highly involved
in community activities and school sports,
enjoyed meaningful relationships with their
half-brother in father's home and with their
grandparents residing in the neighborhood,
and that the father was a vital part of
their lives. Specifically, the Colorado
trial judge and reviewing appellate court
noted that − in this case − the mother's
decision to move seemed “predicated on her
needs and desires” and failed to grasp “how
the children would be affected by separation
from their father, their extended family,
their half-brother and the community.”

Importantly, the Court of Appeals ruled that the new Colorado statute
had the effect of abolishing the earlier approach of
Colorado divorce-child custody-visitation relocation law cases that created
a
presumption in favor of the parent with whom the child then
resided a majority of the time. (Under the
earlier approach of Colorado case law, the parent seeking to relocate was
required to show a sensible reason for the move, but then
the burden of proof shifted to the parent opposing the move.)

These recent Colorado Court of Appeals cases − if not
overruled by the Colorado Supreme Court − establish that
Colorado courts must now decide whether to permit a parent
to relocate with a child (over the other parent's objection)
purely on whether such a move or relocation is, on
balance and considering all the factors of Colorado law,
in the best interests of the child.

Colorado Supreme Court June 2005 Child
Custody Relocation Rulings

In June, 2005,
Colorado's highest and final appellate
court, the Colorado Supreme Court, decided
two important child custody cases involving
the issue of a parent's moving or relocation.

Relocation at the Initial Determination on Colorado Child Custody

In the first of these (the
Spahmer case),
the mother wished to move from Colorado to
Arizona with her daughter prior to an initial
order establishing parenting rights (an
“initial custody case”). The Boulder County
trial judge had ordered the mother to seek
employment and housing in the
Denver-Boulder, Colorado metropolitan area
while she completed her education at
Colorado State University in Ft. Collins.

The Colorado Supreme Court disapproved
the trial court's approach, and
declared that Colorado trial courts have no
authority to order a parent to continue
living in Colorado. Instead, a court must
accept parents' plans regarding where they
intend to live and allocate parental
responsibilities (how the parents will share
parenting time, and how they will make major
upbringing decisions) in the child's best
interests — given those plans.

Colorado’s highest court noted that in an
initial custody case, parents stand “on
equal ground” regarding parental
responsibilities. The goal of divorce
proceedings is to evaluate the best
interests of the child and “create a stable
situation between the new family units
arising out of a divorce.” Therefore, an
analysis of these separate family
circumstances is appropriate, rather than
the Court’s dictating what these
circumstances should be (i.e., where parents will
reside).

Relocation Following an Initial Determination of Child Custody

The second of these cases (the
Ciesluk case)
involved the issue of “removal” or
relocation by a parent after an initial
determination of parenting and custody
rights (a “post decree” after-divorce case).
The Colorado Supreme Court agreed with the Colorado
Court of Appeals (and finally settled the
matter): the new child custody
relocation statute eliminates the law's
earlier
presumption in favor of the majority time
parent seeking to relocate. Instead, both
parents equally share the burden of proving
what parenting time plan and child custody
arrangements will serve the best interests
of the child following a parent’s
relocation.

The Colorado Supreme Court acknowledged two
competing concerns:

the constitutional
right of all citizens to travel — here,
an interest of the relocating parent, and

the
constitutional right of personal choice in
matters of family life (and thus of parents
to maintain close association with, and to
meaningfully participate in the upbringing
of their children) — here, an interest of the
parent remaining in Colorado.

In deciding these relocation cases
and determining the best interests of the
child, the Colorado trial
judge must
weigh both these rights and concerns.

If the majority time parent
is no longer
favored in such cases, neither is he or she
disadvantaged. The Colorado Supreme Court
found that the Jefferson County trial court
erred in its analysis by requiring the
primary caregiver (in this case the mother)
to show the move would provide advantages to
the child. Colorado's highest court ruled that requiring
the mother to show this "enhancement" of her
son's quality of life with a move (thus
infringing upon her right to travel) was
inappropriate because it tilted the analysis
and placed a greater weight on her as the parent
requesting the move.

So, how is such a
decision to be made by a judge, should
parents be unable to come to their own
agreement?

Because both parties stand on equal footing
and neither has a special burden of proof,
the trial court must consider the right to
travel and the right of choice in family
life along with the list of twenty factors
specifically set forth by Colorado’s
statutory law. Eleven of these are the same
factors that influence the allocation of
parenting rights in an initial custody case.
Nine additional
special factors must be weighed in
after-divorce or post-custody orders relocation cases.

These factors must be
weighed in light of all information the
parents present at trial, or the court
learns from other sources including child
and family investigators (“CFI’s”
—
formerly called “special advocates”). The majority time parent must
present specific, non-speculative
information about the child's proposed new
living circumstances and a concrete plan for
modifying parenting time as a result of the
move. The minority parent may: (1) wholly
contest the move and seek to become the
majority time parent; or (2) object to the
approach of the revised parenting plan
proposed by the majority time parent and
provide an alternative.

Where does this leave
Colorado child custody
relocation or “move-away” law? What factors in Colorado
family and divorce law control where
children will reside when a parent seeks to
move a significant distance?

On balance,
these principles seem evident:

Colorado parents stand on an equal playing
field as Colorado judges weigh what is in
the best interests of children when a parent
seeks to move.

In initial child custody
decisions, courts may not order a parent to
reside in Colorado. In subsequent child
custody decisions, the court must balance
the child’s best interests along with the
interests of one parent’s right to move and
of the other parent’s right to maintain a
close connection with the child. In either
case, there is no special burden of proof on
either parent, and courts must determine the
best interests of the child given the two
locations the parents have determined to
establish their homes.

Mediation of Colorado Custody Relocation and Visitation Issues

Obviously, choices and decisions by parents or judges in
this regard have great impact on children's and their
parents' lives. As a result, Colorado divorce law prioritizes
hearings on relocation issues. Nonetheless, Colorado
judges recognize that these
difficult and far-reaching issues are particularly likely to benefit from the
family
mediation process. As a result, most Colorado courts require mediation
before granting a court trial or hearing on a parent's
request to move with a child.

Moreover, these changes
to Colorado laws regarding custody and
visitation relocation remind parents how
important it is that they continue to work
together and determine cooperatively the
design and management of their parenting
plan.

In mediation, parents can candidly discuss the
practical realities and choices confronting them and their
child, as they contemplate relocating or the other parents'
desire to relocate. (These may include perceived
special opportunities and/or hardships with respect to
employment, family, school and other circumstances.)
At a time when all choices may present challenges, family
mediation offers the best opportunity for both parents to be
heard and for constructive problem-solving.

Colorado Legal Terms re Relocation-Custody-Visitation

Colorado's laws regarding relocation embrace the same
progressive language of its approach to what is
traditionally called “custody and visitation law”. Primary
residence means only the home where a child lives a majority
of the time. The terms “custody” and “visitation” have been
replaced with the terms “allocation of parenting
responsibilities” or “decisionmaking” (how major upbringing decisions
are
made by the parents) and “parenting time” or “timesharing” (how time
with the child is shared between the parents).